Said, Crimes of Terror: The Legal and Political Implications of Federal Terrorism
Full text: 

Wadie E. Said's Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions is long overdue for review. In his incisive guide through the stages of U.S. federal terrorism prosecutions, the author explores how the already-warped criminal justice system bends further to accommodate the state's insatiable need to hunt the terrorist bogeyman, at great expense to U.S. Muslim communities, and how this transformation does long-term damage to the integrity of the judiciary writ large (p. 48). Building on his extensive academic publications in the field and his experience as a federal defense attorney working on terrorism cases, Said lends a uniquely bird's-eye legal analysis to a subject which has already benefited from rich human rights and journalistic reporting such as Illusion of Justice: Human Rights Abuses in U.S. Terrorism Prosecutions (Human Rights Watch, 2014), Inventing Terrorists: The Lawfare of Preemptive Prosecutions (Project SALAM, 2014), and The Terror Factory: Inside the FBI's Manufactured War on Terrorism (Ig Publishing, 2013).

Said's central thesis in Crimes of Terror is that the post-9/11 move to a preventive policing model—designed to reduce risk to zero by predicting, preempting, and preventing “acts of terrorism” before they occur—has led to foreseeable abuse, particularly in a criminal justice system which is almost entirely premised on prosecutorial and judicial discretion (p. 19). To demonstrate this, Said covers a lot of ground, walking the reader through the phases of a federal terrorism prosecution in chronological order. The book opens by focusing on the pervasive surveillance of Muslim communities in the United States and critiquing the use of informants— both as intelligence-gathering operatives and as agents provocateurs who use their access to target young, vulnerable Muslims and incite them to action. Said then examines the origins and evolution of the “material support ban,” the government's go-to criminal statute in terrorism cases. The ban prohibits the provision of support—an ever-malleable concept defined by statute to include service, tangible or intangible property, expert advice or assistance, or oneself as personnel—to a virtually unalterable list of Foreign Terrorist Organizations (FTOs) designated by the U.S. State Department (p. 54). Before closing with a review of especially harsh sentencing and detention practices for individuals convicted in terrorism prosecutions, Said unpacks the evidence-gathering tools sanctioned for special use when the government raises the specter of terrorism, and the wide evidentiary deference granted by judges who preside over these cases (p. 95).

For the uninitiated reader, Said provides important context at each step and clear explication of the most fundamental concepts in this field. The government's theory of radicalization, the legal structure of the entrapment defense, the pliability of the Foreign Intelligence Surveillance Act, the role of an expert witness at trial, and a judge's authority in sentencing all feature prominently. These concepts are vibrantly illustrated through devastating case studies approached with the adeptness of a seasoned defender.

For example, Said explains the government's successful campaign to stretch the definition of material support to include the conferral of legitimacy and speech through the examination of two prosecutions. First, he analyzes the prosecution of five officers and directors of the Holy Land Foundation, a prominent U.S. Muslim organization which gathered and sent money to charities— called zakat committees—in the West Bank and Gaza. These five men, Shukri Abu-Baker, Mufid Abdulqader, Ghassan Elashi, Mohammad el-Mezain, and Abderahman Odeh, were ultimately convicted of violating the material support ban, not because they sent money to a State Department– designated FTO, in this case Hamas; instead, Said argues, the government succeeded in pushing a theory that donations to the zakat committees “enhanced Hamas's reputation and legitimacy in the eyes of the community” (p. 68). The men are now serving sentences between fifteen and sixty-five years in federal prison. Said describes the further expansion of material support to include protected speech through the 2012 prosecution of Tarek Mehanna, a young Muslim man from Massachusetts. Mehanna was convicted of providing material support to al-Qa‘ida by translating Arabic language material and posting it on a website which the government characterized as “for those sympathetic to al-Qa[‘ida].” While the government never alleged that Mehanna coordinated or corresponded with anyone representing al-Qa‘ida, Mehanna was convicted and sentenced to seventeen-and-a-half years in prison (p. 70).

These and other cases dissected in Crimes of Terror will be familiar to readers with a critical background in law and national security, who will find the book a helpful reference guide, with crucial citations to relevant authorities on the matter, including some of Said's academic work on the topic. For everyone else—the vast majority of readers who will come across this work—Said's is a vital contribution to an underappreciated area of law, accessibly crafted for an audience who will experience firsthand that nothing is immune from the nebulous, manipulative concept of terrorism—especially not the U.S. criminal justice system.

Author biography: 

Tarek Z. Ismail is the senior staff attorney at the Creating Law Enforcement Accountability and Responsibility (CLEAR) Project at CUNY School of Law. The project provides legal support to individuals and communities affected by U.S. national security policy. He will be joining the CUNY School of Law faculty as an associate professor of law in the fall of 2019.